The Scottish Government has produced a consultative document on a constitution for an independent Scotland. I’ll be responding to the consultation in due course, but there are some issues that stand out on a first reading.
A constitution is not just a matter of identifying institutions. There need to be rules about how things are done: in Hart’s terms, rules of recognition, change and adjudication. In relation to recognition, although the constitution refers to the ‘sovereign will of the people’, it only identifies one route by which laws are made, and that is the Scottish Parliament. It doesn’t state that the Scottish Parliament is able to delegate any part of that authority. The need for delegation is unavoidable – for example, in the issuing of statutory regulations, or the passing of by-laws by local government or statutory agencies.
On change, there is something missing. This may be an interim constitution, but there is no provision for it to be changed except by its complete replacement. Provision for amendment is basic.
On adjudication, the bill tells us that there will be a court, but not what the powers of the courts will be. There are ‘civil’ and ‘criminal’ branches, but not a constitutional branch. Can the courts adjudicate on the constitution, or will they be overruled by government? Can there even be judicial review of government action, short of breaches of human rights? What will happen if the courts and the Parliament disagree?
Those are the fundamental issues, but there are other significant questions besides. The powers of local government, as described here, are very limited indeed. Local government is there ‘to represent and promote the interests of the people living within the local area’. That is, more or less, the current role of a parish council, and it falls a long way short of the powers local governments need to provide public services or to undertake public projects. Local government in Scotland has rather more powers now (even if they’re less than the powers permitted to councils in England); they need the power to act on behalf of a local population to increase welfare and to serve their population.
The provision on nuclear weapons will be controversial, but regardless of the merits of the principle, this is very badly expressed. A constitutional principle should be general, enduring, and relate to the powers of the government; this doesn’t meet any of those criteria. Government is supposed to negotiate about disarmament – what, even after the negotiations have been concluded? Why just nuclear weapons? What about WMD, chemical weapons, biological – or even conventional arms? A constitution is supposed to provide for the use of legitimate force and the establishment of armed services – this one doesn’t.
The other point I’d raise at this stage is one that isn’t here, or in the US constitution, or indeed anywhere else – a definition of the powers of government in relation to foreign citizens. Can our government declare war? Kill foreigners? Spy on them? Arrest them? Deport them? (If they are “in Scotland” they are “entitled to its protection and benefit”.) We’ve seen in recent years that international law doesn’t act effectively to constrain most government action; a constitution has to.